Smith v. Abbott

Rice, J. The plaintiff in this case, appears to have been engaged in a series of law suits with a part of the defendants, in which several judgments, both in law and in equity, have been obtained against him. Those judgments all remain upon the records of the Courts in which they were rendered, unreversed, and their validity unimpaired. A history of the origin of this protracted litigation may be found in the case of Smith, in equity, v. Ellis, 29 Maine,. [446] 422. Ia that case'the ' question of fraud was distinctly before the Court. The plaintiff brings this suit, not only against the parties with whom he has been in litigation, who are now living, and the representatives of such as have deceased, and their principal attorney, but includes the officers by whom precepts in these cases were served, charging all in one extended count, with conspiring together, fraudulently to wrong, injure and defraud him. If the declaration were free from defects, such an action, under such circumstances, cannot be maintained. While those judgments stand unre.versed, the presumption of the law is, that they were fairly obtained; and this presumption is very strong when it appears, that the ground on which this action is now sought to be maintained was fully known and presented when those former actions whre tried. Those cases cannot be re-examined in this collateral way. Dunlap v. Glidden, 31 Maine, 435. At the trial, on the reading of the plaintiff’s writ, and before any evidence was offered, a nonsuit was ordered by the presiding Judge. To this order the plaintiff excepted. The proper way to take advantage of a declaration which doo¡s not set out any legal cause of action, is by demurrer. . But when a nonsuit has been ordered in such case, the Court will refuse to set it aside on the ground of convenience, it being clear that the plaintiff cannot sustain a judgment upon such defective declaration. Boyd v. Brent, 1 Tread. Const. R. 101; Martin v. Mitchell & al., Harp. R. 455. There being no legal cause of action exhibited by the plaintiff’s declaration, he has suffered no injury by the direction of the Court, and therefore has no cause for exceptions. Exceptions overruled.